Published 8 February 2021, The Daily Tribune

When arrest is ordered by a judge pursuant to a warrant of arrest, the most urgent concern is how the accused can secure liberty, albeit only temporarily. Understanding bail and its requirements is therefore crucial.

Jurisprudence has recognized that the right to bail is cognate to the fundamental right to be presumed innocent.  Bail is the security given for the release of a person in custody of the law. It assures the court of his or her appearance as required under the conditions specified by the court. It may be given in the form of corporate surety, property bond, cash deposit or recognizance.

Bail may be a matter of right or judicial discretion. Under Section 13, Article III of the 1987 Constitution, all persons are entitled to bail as a matter of right, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong.

If the accused is charged with an offense the penalty of which is death, reclusion perpetua, or life imprisonment, then his or her entitlement to bail is based on the discretion of the trial court.  The accused may file a petition for bail to determine whether evidence of guilt is strong. If the judge finds that evidence of guilt is not strong, bail may be granted.

So important is this remedy that in the case of People vs. Manuel Escobar (G.R. No. 214300, July 26, 2017), the Supreme Court ruled that a second petition for bail may be entertained by the trial court.

In that case, respondent Escobar was facing trial for the crime of kidnap for ransom. After his First Bail Petition was denied, the police arrested one of the co-accused. The case for the co-accused was based on the testimony of the same eyewitness against Escobar. After the court granted bail to the co-accused based on the allegedly unreliability of the eyewitness’s testimony, Escobar filed a Second Bail Petition, arguing that this should also serve as basis for his provisional liberty. The trial court denied the Second Bail Petition on ground of res judicata.

The Supreme Court ruled that in light of the circumstances after the denial of Escobar’s First Bail Petition, his Second Bail Petition should have been given due course. It should not be denied on the technical ground of res judicata. Res judicata applies only in a final judgment in a civil case, not in an interlocutory order in a criminal case, and an order disposing a petition for bail is interlocutory. This order does not attain finality when a new matter warrants a second look on the application for bail.

How much does bail cost? The same Constitutional provision above states that excessive bail shall not be required. The amount of bail is set by the public prosecutor and is usually included in the Information filed in court pursuant to a preliminary investigation. The Department of Justice comes out with and periodically updates its schedule of recommended bail depending on the offense involved.

If the accused cannot afford the bail, he or she can file a motion to reduce the bail, which the judge may grant depending on good cause shown. It may depend on the financial ability of the accused to give bail; nature and circumstances of the offense; penalty of the offense charged; character, reputation, age and health of the accused; the weight of the evidence against the accused; probability of the accused appearing in trial; forfeiture of other bonds; among others.

Generally, no bail is allowed after the judgment of conviction has become final, unless he has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of the Probation Law. In case the accused has applied for probation, he may be allowed temporary liberty under his bail bond, but if no bail was filed or the accused is incapable of filing one, the Court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.

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